11/27/91 JAMES R. SPEIGHT v. UNITED STATES

Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Ferren, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: King

King, Associate Judge:

Appellant seeks reversal of his conviction of possession with intent to distribute cocaine in violation of D.C. Code § 33-541 (a)(1) (1988 Repl.). He challenges the sufficiency of the evidence supporting his conviction, and contends the trial court erred in not granting him a new trial based on the alleged bias of a juror. On this record, we find insufficient evidence to sustain appellant's conviction. Therefore, we reverse. *fn1

I.

The evidence presented at trial revealed that two police officers, Morgan and Bailey, gained entry to an apartment when the tenant, Ralph Glascow, opened the door. They observed a woman, later identified as Carolyn Glascow, the daughter of the tenant, sitting on the arm of a couch in the living room. As they entered the room, she arose from the couch and ran into the bathroom. Appellant and another individual, later identified as Gregory Smith, were standing a few feet in front of the couch and approximately five to six feet from where Carolyn Glascow had been sitting.

On a table behind the couch, Morgan observed what appeared to be drug paraphernalia. He investigated the items and found a cup covered with foil and a single zip-lock bag containing a rock of what was later determined to be cocaine. Morgan then observed a clear plastic bag lying on top of the rear portion of a seat cushion of the couch where Carolyn Glascow had been sitting. The bag was "wrapped up" and was on the cushion closest to the front door. The bag had not been visible to the officers when they entered because it was hidden by the arm of the couch. Inside the plastic bag were twenty-seven zip-lock bags each of which contained a small rock of what was later determined to be cocaine. Morgan also discovered a pouch containing approximately seven hundred dollars wedged between two cushions of the couch.

At this point, Carolyn Glascow came out of the bathroom. Morgan then entered it and discovered, on the toilet tank, a small pharmaceutical bottle which had been converted into what appeared to be a smoking device. Officer Morgan then heard noise coming from the bedroom and directed Officer Bailey to investigate the source of the noise. Bailey went into the bedroom and found a second woman, Lisa Green. He also discovered hanging from the bedroom door two bags containing eighty zip-lock bags of rocks, later determined to be cocaine, and approximately $6,000. The money was folded in bundles that were held together by rubber bands. Bailey also discovered three more zip-lock bags containing rocks: one under the bed, one on top of the bed, and one on the window sill. Finally, he discovered another smoking device. All five individuals in the apartment were arrested. When appellant was asked his name, he gave an alias, Antonio Johnson.

Appellant was charged with possession with intent to distribute cocaine (the twenty-seven zip-lock bags recovered from the couch and the single rock found on the table behind the couch), and possession of drug paraphernalia (the apparatus recovered from the table behind the couch). He was tried jointly with Gregory Smith and Carolyn Glascow and found guilty by a jury of possession with intent to distribute cocaine. *fn2 The trial Judge, however, acquitted appellant of the drug paraphernalia charge. *fn3

II.

In determining whether there was sufficient evidence to support appellant's conviction, we must view all the evidence in the light most favorable to the government. Irick v. United States, 565 A.2d 26, 30 (D.C. 1989). We are obligated to reverse appellant's conviction, however, if the evidence adduced at trial, when viewed under that standard of review, would not permit a reasonable juror to find guilt beyond a reasonable doubt. Langley v. United States, 515 A.2d 729, 731 (D.C. 1986). Since there was no proof of actual possession of the drugs by appellant, the government's case must rest upon the theory of constructive possession. It is not sufficient for the government to show that appellant was within reach of the drugs; mere proximity is not enough. Wheeler v. United States, 494 A.2d 170 (D.C. 1985). Rather, in order to prove constructive possession, the government must show: (1) that appellant knew of the location of the drugs; (2) that he had the ability to exercise dominion and control over them; and (3) that he intended to guide their destiny. In re T.M., 577 A.2d 1149, 1151 n.5 (D.C. 1990). We conclude that on these facts the government has failed to make the required showing.

Although not entirely free from doubt, we are satisfied that viewing the evidence in the light most favorable to the government, the jury could reasonably have found: that appellant was aware of the drugs on the couch; and that because the drugs were only six feet away from him, he had the ability to exercise dominion and control over them. The government's proof falls short, however, in establishing that appellant intended to exercise any dominion and control over the contraband in question or to guide its destiny.

There was no evidence presented linking appellant to the drugs other than his proximity to them. A search of his person revealed no drugs or any other incriminating evidence that connected him to any drug activity. Nor was there any evidence that he handled any of the drugs. *fn4 Indeed, there was no indication that appellant was ever closer than six feet to them. At the time of the entry by the police, Carolyn Glascow was inches away, and co-defendant Smith was standing between appellant and the drugs. During the entire time the officers conducted their investigation, he remained standing in front of the couch. Moreover, appellant did not live in the apartment, *fn5 none of his belongings were found there, and there was no testimony regarding how long he had been there. The apartment lacked any of the tell-tale characteristics that readily suggest a premises used primarily for illicit drug activity. *fn6 Instead, the apartment was fully furnished and appeared to be the regular residence of the tenant. Thus, the clear import of the evidence presented was that appellant was nothing more than a visitor in someone else's home.

Our Conclusion that there was insufficient evidence to sustain appellant's conviction is supported by this court's holding in In re T.M., supra. In T.M., police officers entered an apartment with a battering ram. Finding the living room unoccupied, they proceeded into a bedroom and discovered T.M. and four other individuals attempting to conceal themselves beneath blankets and clothing strewn about the room. Another individual was discovered hiding in a closet. Also discovered in the room was a box with 129 bags of cocaine, a pie plate containing powdered cocaine, and a handgun along with some ammunition. All five individuals in the room were approximately the same distance from the pistol, but at least one other person was closer to it than T.M. T.M. was ...

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